Citation Nr: 0814817
Decision Date: 05/05/08 Archive Date: 05/12/08
DOCKET NO. 07-07 014 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Massachusetts Department of
Veterans Services
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Joseph P. Gervasio, Counsel
INTRODUCTION
The veteran served on active duty from June 1951 to January
1956.
This case comes to the Board of Veterans' Appeals (Board) on
appeal of a rating decision of the Boston, Massachusetts,
Regional Office (RO) of the Department of Veterans Affairs
(VA).
The veteran testified at a hearing at the RO before a Member
of the Board in August 2007.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The veteran claims service connection for bilateral hearing
loss that he asserts had its onset due to noise exposure
while he was on active duty. He has submitted documentation
that he served in the noisy engine room of ships and that the
ship on which he served was involved in combat during the
Korean War. He has testified that he remembers having had
tinnitus since his period of active duty that he associates
with his noise exposure.
In a veteran's claim for benefits, lay evidence can be
competent and sufficient to establish a diagnosis of a
condition when either a layperson is competent to identify
the medical condition; the layperson is reporting a
contemporaneous medical diagnosis, or where lay testimony
describing symptoms at the time supports a later diagnosis by
a medical professional. Jandreau v. Nicholson, 492 F. 3d
1372 (2007).
VA outpatient treatment records dated in November 2005 show
that the veteran has bilateral sensorineural hearing loss.
His application for benefits notes 1995 treatment at the
Haverhill VA clinic on "Merrimack Street" in Haverhill.
This record also refers to previous testing that took place
at "Causeway St." in June 1998. Reports of this treatment
are not of record.
Under these circumstances, it is believed that additional
development is warranted.
Accordingly, the case is REMANDED for the following action:
1. The RO/AMC should contact the veteran
and request a list of all medical care
providers who may have treated him for his
hearing loss. After obtaining any
necessary consent, copies of all treatment
records identified, including those
records of treatment in 1995 and June 1998
should be obtained. If records are sought
but not received, documentation of the
attempts made and the negative results
should be set out in the claims folder.
2. The RO/AMC should arrange for the veteran
to undergo a VA compensation examination to
ascertain the nature and extent of any
hearing disability. The examiner should be
requested to render an opinion regarding
whether it is at least as likely as not
(probability 50 percent or greater) that any
hearing loss identified is related to noise
exposure during service. If a determination
cannot be made without resort to speculation,
that too should be noted on the title page.
3. Thereafter, the RO/AMC should
readjudicate the issues on appeal. If the
determination remains unfavorable to the
veteran, he and his representative should be
provided with a supplemental statement of the
case (SSOC) that addresses all relevant
actions taken on the claims for benefits, to
include a summary of the evidence and
applicable law and regulations considered.
The veteran should be given an opportunity to
respond to the SSOC prior to returning the
case to the Board for further review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
_________________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).